By most accounts, perennial swing voter Anthony Kennedy was very much in play in the Gill v. Whitford partisan gerrymandering case from Wisconsin. He and the four liberals could finally decide to rein in the most egregious partisan gerrymanders.
But, ELB readers may recall that about an hour after the Court agreed to hear Gill, the Court, on a 5-4 vote, with the liberal justices dissenting, issued a stay of the lower court’s order requiring the Wisconsin legislature to draw new districts by November to solve the partisan gerrymander by 2018.
Plaintiffs could now move to lift the stay, on the theory that Justice Kennedy probably has a good idea what he’s going to do in this case, and Wisconsin voters should not be subject to yet another election where their First Amendment rights (in Kennedy speak) are violated by an egregious partisan gerrymander.
My guess is that plaintiffs won’t do it. As I’ve noted, even in cases where plaintiffs ultimately win the Court has gotten into a habit of stopping lower courts from enforcing remedies in redistricting cases before the Supreme Court has spoken. (The Supreme Court is in No Hurry to Protect Voters from Gerrymandering, Washington Post (Post Everything), June 28, 2017.) The Court did it most recently in the Texas redistricting cases. And maybe it will annoy the Court to go back to think about this issue again.
But on the merits, why should Wisconsin voters endure another election with an unconstitutional map, if we know where this thing is going to end up?
Justice Alito, if he’s in the dissent, could try to drag this out till June to minimize the impact of the ruling. More justice delayed being justice denied on the horizon.